Does a financing condition let a buyer walk away for any reason, or only if financing genuinely falls through?
No, not if the condition is drafted properly — a financing condition is meant to protect a buyer against financing genuinely falling through, not to function as an unlimited right to abandon the deal for unrelated reasons like cold feet or finding a better opportunity elsewhere. Well-drafted financing conditions typically require the buyer to use commercially reasonable efforts (or a similarly defined standard) to actually pursue and secure financing, rather than simply asserting financing didn't come through without having tried.
A buyer who never seriously applied for financing, or who deliberately sabotaged its own application, generally can't rely on the condition failing to justify walking away — that kind of conduct can expose the buyer to a claim that it failed to satisfy its own efforts obligation, separate from whether financing was actually obtained. Sellers who are worried about this often negotiate for evidence of genuine financing efforts as the deal progresses, rather than waiting to find out at the deadline.
If you're the seller and a broad or loosely worded financing condition is proposed, that's exactly the kind of clause worth having tightened by a Treadstone business lawyer before you sign.
Key takeaways
- A properly drafted financing condition protects against genuine financing failure, not buyer's remorse.
- Buyers are typically required to use real, defined efforts to actually pursue financing.
- Sabotaging or never pursuing financing can itself breach the buyer's efforts obligation.
- Sellers can negotiate for evidence of genuine financing efforts as the deal progresses.